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Members of Beede Site Group v. Federal Home Loan Mortgage Corp.

United States District Court, First Circuit

September 5, 2013

MEMBERS OF THE BEEDE SITE GROUP, Plaintiff,
v.
FEDERAL HOME LOAN MORTGAGE CORP., et al., Defendants.

OPINION AND ORDER

William E. Smith, United States District Judge.

This case relates to the apportioning of costs arising from an environmental clean-up effort on contaminated property in Plaistow, New Hampshire (the “Beede Site”). Plaintiff is a group of the companies that deposited the lion’s share of hazardous materials on the site. Plaintiff entered into a consent decree with the United States Environmental Protection Agency (the “EPA”) and the New Hampshire Department of Environmental Services (“NHDES”), in which it agreed to perform the environmental remediation. Plaintiff in turn sued over 200 defendants under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) for contribution to this effort. All but two defendants, BSS Realty Trust (“BSS Realty”) and Senter Transportation Co., Inc. (“Senter” and, together with BSS Realty, “Defendants”), have settled and been dismissed from the suit.[1] Both Plaintiff and Defendants now move for summary judgment, with Plaintiff moving with respect to liability only.

I. Facts

The Beede Site was the location of oil-related operations, including waste oil processing and re-sale, fuel oil sale, and contaminated soil processing into cold-mix asphalt, in addition to antifreeze recycling and other related industries, from the 1920s until operations ceased in approximately 1994. BSS Realty is the former owner of property located at 65 Hale Street, Haverhill, Massachusetts (the “BSS Site”), where Senter was a long-time tenant. Senter operated a fleet of 15-20 trucks that hauled gas and oil in tankers. As part of its regular maintenance of its trucks, Senter changed the oil in its trucks and stored the discarded oil in a 500 gallon storage tank on the BSS Site. (Senter Dep. 39:17-40:5, 41:13-42:2, Feb. 15, 2012, ECF No. 702-05.) Between 1982 and 1986, Senter contracted with Beede Waste Oil Corp. (“Beede Corp.”) on at least eleven occasions to empty the waste oil from the storage tank. (Ex. C to Aff. of Curtis A. Connors, Esq. (BSS Realty’s Resp. to Interrog.), Interrog. 4, ECF No. 702-6; Ex. I to Aff. of Curtis A. Connors, Esq., ECF No. 702-12.)

Following decades of occupancy and use of the BSS Site by Senter, BSS Realty leased the BSS Site to Salvucci Transportation, a trucking and demolition business. In May 1990, during Salvucci Transportation’s tenancy on the BSS Site, BSS Realty contracted with Beede Corp. to transport 500 gallons of waste oil from the BSS Site. (Ex. E to Aff. of J. Mark Dickison, ECF No. 701-5.) In July 1990, BSS Realty discovered a “foreign substance” in a mound of soil during a visit to the BSS Site during Salvucci Transportation’s tenancy. (BSS Realty’s Resp. to Interrog., Interrog. 12.) The Massachusetts Department of Environmental Protection sent a letter requiring BSS Realty to transport the contaminated soil from its site. BSS Realty filled out the required Uniform Hazardous Waste Manifests and paid for the “Virgin Petroleum Contaminated Soil” to be transported to the Beede Site on two occasions. (Exs. C & D to Aff. of J. Mark Dickison, ECF Nos. 701-3 & 701-4.) Prior to the second disposal, which occurred on March 29, 1991, BSS Realty contracted with the New England Environmental Technologies, Corporation (“NEET”) to test the soil on the Beede Site. (Ex. G to Aff. of Curtis A. Connors, Esq. (Invoice from NEET and Testing Results), ECF No. 702-10.) On March 25, 1991, the “Beede Environmental Serv Team” received sampling results showing elevated levels of arsenic, cadmium, lead, selenium and silver in the sampled soil. Id.

The EPA and the NHDES took initial response actions at the Beede Site and pursued potentially liable parties, demanding that they perform environmental remediation at the Beede Site. In 2004, the EPA estimated the remedial cost would be $48, 000, 000. Several potentially responsible parties organized the Beede Site Group and, without admitting any liability, entered into the Beede Waste Oil Superfund Site RD/RA Consent Decree, requiring each signatory to (1) reimburse the United States and the state of New Hampshire for clean-up costs; and (2) perform all further cleanup work. Plaintiff’s expert estimates that clean-up costs would amount to $74, 163, 000. Plaintiff now seeks contribution from the other parties responsible for polluting the Beede Site.

II. Standard

Summary judgment is appropriate when, viewing the record in the light most favorable to the non-moving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56; Taylor v. Am. Chemistry Council, 576 F.3d 16, 24 (1st Cir. 2009). “A genuine issue of fact exists where the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Taylor, 576 F.3d at 24 (internal citation and quotation marks omitted).

The moving party bears the initial burden of demonstrating a lack of a material issue of fact, which shifts the burden to the non-moving party. As the First Circuit Court of Appeals has explained:

The moving party bears the initial burden of informing the trial court of the basis for his motion and identifying the portions of the pleadings, depositions, answers to interrogatories, admissions, and affidavits, if any, that demonstrate the absence of any genuine issue of material fact. Once the moving party has accomplished this feat, the burden shifts to the nonmoving party, who must, with respect to each issue on which she would bear the burden of proof at trial, demonstrate that a trier of fact could reasonably resolve that issue in her favor. As a general rule, that requires the production of evidence that is significant[ly] probative. If the nonmovant fails to make this showing, then summary judgment is appropriate.

Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010) (internal citations and quotation marks omitted).

III. CERCLA Claims

CERCLA empowers the federal government and states to initiate environmental remediation projects and recoup the expenses associated with these efforts. Property owners are strictly liable for disposing of the hazardous materials on their properties, but they may then seek reimbursement from other owners and polluters – the so-called “potentially responsible parties” (“PRPs”). 42 U.S.C. § 9607(a) (“Section 107”). Section 107 generally authorizes the United States, a state, or “any other person” to seek reimbursement for all remedial costs associated with hazardous materials on a property. Id. Section 113(f) of CERCLA allows PRPs to seek contribution from other PRPs. 42 U.S.C. § 9613(f). Specifically, Section 113(f)(3) provides a right of contribution to PRPs that have settled their CERCLA liability with a state or the United States through an approved settlement. Id.

CERCLA provides for strict liability under §§ 107 & 113 for four categories of persons: (1) owners or operators; (2) past owners or operators; (3) transporters or (4) arrangers. 42 U.S.C. § 9607(a); see also United States v. Davis, 261 F.3d 1, 28-29 (1st Cir. 2001) (citing Acushnet Co. v. ...


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